Scott v. Nashville Bridge Co.

"Employees of railroads, those of employers having less than five employees, domestic servants, farm laborers and gin laborers are excluded from the operation of the act, but this was doubtless for reasons that the Legislature deemed sufficient. The nature of these several employments, the existence of other laws governing liability for injuries to railroad employees, known experience as to the hazards and extent of accidental injuries to farm hands, gin hands and domestic servants, were all matters no doubt considered by the Legislature in exempting them from the operation of the act. Distinctions in these and other respects between them and employees engaged in other industrial pursuits may, we think, be readily sug gested. We are not justified in saying that the classification was purely arbitrary.”

This case was carried by writ of error to the Supreme Court of the United States, and that court, in an opinion by Mr. Justice PITNEY, said:

"There is a strong presumption that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds. The equal protection clause does not require that State laws shall cover the entire field of proper legislation in a single enactment. If one entertained the view that the act might as well have been extended to other classes of employment, this would not amount to a constitutional objection." 249 U. S., 157, 39 Sup. Ct., 229, 63 L. Ed., 527.

Scott v. Nashville Bridge Co.

The Maryland act was held not to be invalid as class legislation because its provisions apply only to those engaged in mining coal and clay in two designated counties. American Coal Co. v. Allegheny County, 128 Md., 564, 98 Atl., 143. The court, in sustaining the act, said that there could be no serious objection to the classification of those engaged in mining coal and clay in a group by themselves, although there are other dangerous occupations to which the law does not apply, and the restriction of the law to the designated counties could prove no stumbling block to the legislation, for such local limitations are recognized as legal and proper, if all within the selected locality are treated alike and the locality itself is broad enough to work no harmful discrimination.

In Sayles v. Foley, 38 R. I., 488, 96 Atl., 340, it was held that the exclusion of domestic and agricultural employees, or casual employees, and of employees of employers of five or less workmen, did not render the Rhode Island act unreasonable and discriminatory. In that case it was also held that the exclusion from the act of employees receiving more than $1,800 per year was not an unreasonable classification, as in most employments involving considerable danger of injury from accident the employee receiving such a salary or wage may be presumed to be exposed to less danger of accident than the ordinary workman.

The Illinois act was held not to be unconstitutional upon the ground that section 31 requires an unreasonable and arbitrary classification, in that it sets apart contrac

143 Tenn.-8

Scott v. Nashville Bridge Co.

tors from all classes of persons, and imposes a burden upon them that if they fail to require subcontractors to insure, thus arbitrarily distinguishing also one class of contractors from another class. Parker-Washington Co. v. Industrial Board, 274 Ill., 498, 113 N. E., 976.

It is next insisted that the act is violative of section 6 of article 1 of the State Constitution, because it denies trial by jury. The section of the Constitution referred to provides:

"That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors."

Section 32 of the act in question provides: "The cause shall be heard by the circuit judge without a jury and as other nonjury civil cases are heard in the circuit court. Neither party shall have the right to demand a jury."

The constitutional provision above referred to only protects the right of trial by jury as it existed at common law. Trigally v. Memphis, 6 Cold., 385; Marter v. Wear, 117 Tenn., 244, 96 S. W., 447; Woods v. State, 130 Tenn., 106, 169 S. W., 558, L. R. A., 1915F, 531; State ex rel. v. Howse, 134 Tenn., 67, 183 S. W., 510, L. R. A., 1916D, 1090, Ann. Cas., 1918C, 1125.

The act in question confers rights and remedies that were unknown to the common law. The act is elective. If the employee accepts the provisions of the act, it thereby becomes a part of his contract of employment, and he waives his right to trial by jury and accepts the compensation and remedies provided by the act.

Scott v. Nashville Bridge Co.

It is provided by statute that, on a failure to demand or call for a jury in the first pleading tendering an issue, or on the first day of the term at which the suit stands for trial, a jury trial is conclusively presumed to have been waived. Shannon's Code, section 4613.

A jury may be waived by parties falling within the provisions of the Workmen's Compensation Act by their voluntary acceptance of the terms of said act.

It has been invariably held that, under the voluntary or elective Workmen's Compensation Acts, parties, by accepting the act, waive the right to a jury trial; hence there is no deprivation of that right. Hawkins v. Beakley, (D. C.), 220 Fed., 378 (sustaining the Iowa act); Deibeikis v. Link Belt Co., 261 Ill., 454, 104 N. E., 211, Ann. Cas., 1915A, 241; Hunter v. Coffar Consolidated Coal Co., 175 Iowa, 245, 154 N. W., 1037, 157 N. W., 145, L. R. A., 1917D, 15, Ann. Cas., 1917E, 803; Greene v. Caldwell, 170 Ky., 571, 186 S. W., 648, Ann. Cas., 1918B, 604; Mathison v. Minn. St. Ry. Co., 126 Minn., 286, 148 N. W., 7, L. R. A., 1916D, 412; Sexton v. Newark Dist. Tel. Co., 84 N. J. Law, 85, 86 Atl., 451.

It is next insisted that the act violates section 17 of article 1 of our State Constitution, which reads as follows: "That all courts shall be open; and every man, for any injury done him in his lands, goods, person or reputation, shall have a remedy by due course of law, and right and justice administered without sale, denial or delay."

It is insisted by plaintiff that the act closes the courts to him that were open prior to its passage, and denies him a remedy by due course of law.

Scott v. Nashville Bridge Co.

We do not think such is the effect of the act. Section 32 provides as follows:

"That in case of a dispute over or failure to agree upon compensation under this act between the employer and employee, or the dependent of the employee, either party may submit the entire matter for determination to the judge or chairman of the county court in which the accident occurred and such judge or chairman is hereby vested with jurisdiction to hear and determine the issues and render judgment and enforce the same in the same manner as courts render and enforce judgment.

"The county judge or chairman shall have power to subpoena witnesses, administer oaths. Either party dissatisfied with the judgment of the judge or chairman may appeal as in any other civil cases to the next term of the circuit court of the county where the cause will be heard by the circuit judge de novo. The party filing the petition may, at his option, instead of filing the same before the county judge or chairman file the same as an original petition in either circuit, criminal, or chancery court of the county in which the petitioner resides or in which the alleged accident happened, in which event summons shall be issued by the clerk of the court in which the proceeding is instituted, and shall be returned before said court within the time provided for proceedings before a county judge or county chairman. Any party to the proceedings in the circuit, criminal or chancery court may, if dissatisfied or aggrieved by the judgment or decree of that court, pray an appeal in the nature of a